Excerpt:.....which is a mere formal or technical error, will not by itself be sufficient to attract the extra-ordinary jurisdiction of this court under article 226 of the constitution of india. 9. before parting with the case, we would like to observe that rule 25 of the regulation, which provides that where the hearing of an appeal is complete, the board may pronounce its decision forthwith or fix a dale for the same, is to be scrupulously observed......on 2-4-1980 and 8-4-1980. no notice of the application was given to the petitioner and the board passed an order on 6-9-1980 calling for a report from the sub-divisional officer. the order runs as follows: 'seen the application under regulation 17(3) of the assam board of revenue regulation filed by the appellant. heard also the learned advocate moving the application. for a better appreciation of the case, call for a report from the s.d.o. as to the purchase of liquor by the respondent on 2-4-1980 and 3-4-1980. the parties will get an opportunity to address the court on the s.d.o.'s report if any. fix 15-9-1980 for the report.? 3. it appears that the board passed the order above in exercise of its power under rule 17(3) of the regulation. a copy of the order was served along.....

Judgment:

N. Ibotombi Singh, J.

1. This petition under Article 226 of the Constitution is directed against the order dated 6-9-1980 passed by the Assam Board of Revenue in its appellate jurisdiction under the Assam Excise Act, 1910.

2. The facts giving rise to this petition may be stated as follows :

Tenders were invited for settlement of No. 5 Barpathar Country Liquor Shop in Golaghat Sub-Division for a period from 1-4-1980 to 31-3-1981. The petitioner and the respondents 3, 4 and 5 were amongst the persons who submitted tenders for settlement of the said shop. The Sub-Divisional Officer, Golaghat (hereinafter called 'the Primary Authority') by an order dated 28-2-1980 settled the shop with Sri Tankeswar Duara, petitioner before us for the said period. The respondents 3, 4 and 5 preferred separate appeals before the Assam Board of Revenue under Section 9(1) of the Assam Excise Act, registered as appeals Nos. 64E/80, 103E/80 and 128E/80 respectively. In the appeal preferred by respondent No. 3 the grounds, amongst others, were that the petitioner was not financially solvent and that he was a benamdar for some other persons. The Board after hearing in part on 29-8-1980 adjourned the cases till 3-9-1980 for further argument. Further argument was heard on 3-9-1980 and the Board reserved its decision without fixing a date for pronouncement of

its decision. Before pronouncement of its decision, the respondent No. 3, Sri Rupak Kumar Dutta, filed an application on 6-9-1980 under Rule 17(3) of the Assam Board of Revenue Regulation I. 1963 to order further investigation by calling for report from the Sub-Divisional Officer, Golaghat, as to the purchase of liquor by the petitioner on 2-4-1980 and 8-4-1980. No notice of the application was given to the petitioner and the Board passed an order on 6-9-1980 calling for a report from the Sub-Divisional Officer. The order runs as follows:

'Seen the application under Regulation 17(3) of the Assam Board of Revenue Regulation filed by the appellant. Heard also the learned Advocate moving the application. For a better appreciation of the case, call for a report from the S.D.O. as to the purchase of liquor by the respondent on 2-4-1980 and 3-4-1980. The parties will get an opportunity to address the Court on the S.D.O.'s report if any. Fix 15-9-1980 for the report.?

3. It appears that the Board passed the order above in exercise of its power under Rule 17(3) of the Regulation. A copy of the order was served along with a copy of the petition dated 6th September, 1980 on the Advocate of the petitioner on 9-9-1980. By this petition, the petitioner challenges the said order.

4. Learned counsel for the petitioner submits first that after conclusion of arguments of both the parties, the Board has no power to order further investigation by invoking Rule 17(3) of the said Regulation; secondly, the order violates principle of natural justice; the petition was heard behind the back of the petitioner and the opportunity provided for in Sub-rule (4) of Rule 17 cannot cure the illegality committed for violation of principle of natural justice. Learned counsel for the respondent No. 3 contends that before pronouncement of decision, the Board can exercise its power to order further investigation under Rule 17(3)' of the said Regulation, when it thinks it necessary. It is urged that it is not incumbent on the part of the Board to give notice on hearing of the application filed by the respondent No. 3 and hear the petitioner before passing such an order as the parties would be entitled to address the Board on the points arising out of the further investigation.

5. The main question is whether the 'Board has any power to order further investigation under Rule 17(3) of the said Regulation after the conclusion of the arguments but before pronouncement of its decision. Rules 17(3)

and (4) which are relevant are reproduced below:

'17(1) & (2) *** *** ***

(3) The Board may direct any authority against whose order an appeal or application is made, to make such further investigation or to take additional evidence directly or through any subordinate authority as it may think necessary.

(4) Where fresh evidence has been adduced under sub-regulation (1) or a further investigation is made or additional evidence is taken under sub-regulation (3), the parties shall be entitled to address me Board on points arising out of the fresh or additional evidence or further investigation.'

6. In our opinion, a plain reading of sub-rules (3) above makes it clear that the Board can exercise its power to order further investigation at any time before the pronouncement of its final decision. It is only after hearing of arguments of the parties that the Board may think it necessary to order for further investigation or to take additional evidence as contemplated in Sub-rule (3) in order to enable it to pronounce its final decision on merits in appeal. The language of Sub-rule (3) is wide in ite amplitude to embrace such a case as is before us. In the absence of words restricting its application to such a case, we are unable to accept the contention of the learned counsel for the petitioner. The language of the Rule does not warrant such a narrow interpretation as contended by the learned counsel, and if accepted, it may defeat the ends of justice. The mere fact that the Board exercised its discretion and ordered for further investigation on consideration of the application of one of the parties does not make the order bad in law. In the instant case, the Board in exercise of discretion, passed the impugned order for better appreciation of the case, giving opportunity to both the parties to address the Board after receipt of the report from the Sub-Divisional Officer. The exercise of discretion cannot be said to have been made arbitrarily or capriciously. There is, in our opinion, no jurisdictional error in exercise of its discretion.

7. Dealing with the second question, failure to give notice to the petitioner before the impugned order was passed by itself does not make the order illegal. No final order has been passed prejudicial to the petitioner's right to the settlement of the shop. Under Sub-rule (4) of Rule 17 of the said Regulation, the petitioner will be entitled to address the Board when an adverse report is received from the Sub-Divisional Officer and he can challenge it on various grounds. It is not a case of breach of duty to act fairly in accordance with the rules of natural justice but it is a mere formal or technical error. In fairness, it would have been better for the Board to hear the petitioner as well before the impugned order was passed. But failure to give notice in the instant case, which is a mere formal or technical error, will not by itself be sufficient to attract the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India. In our opinion, the petitioner cannot be said to have been substantively prejudiced, as he will have adequate opportunity to explain the report of the Sub-Divisional Officer under Sub-rule (4) of Rule 17 of the Regulation.

8. The impugned order is interlocutory in nature. Though these may not be absolute bar to approach this Court under Article 226 of the Constitution of India, we are reluctant to interfere with the impugned order in exercise of the Extraordinary power under Article 226 of the Constitution of India, where there is no jurisdictional error.

9. Before parting with the case, we would like to observe that Rule 25 of the Regulation, which provides that where the hearing of an appeal is complete, the Board may pronounce its decision forthwith or fix a dale for the same, is to be scrupulously observed. In case the Board is unable to pronounce its decision forthwith, it has to fix a date and not to reserve its decision sine die. The practice of reserving decision sine die without fixing a date is to be avoided.

10. In view of the foregoing reasons, the petition is dismissed. There will be no order as to costs. Send down the records of the case immediately to the Board to proceed further with the appeals.